Citation Nr: 1034400
Decision Date: 09/13/10 Archive Date: 09/21/10
DOCKET NO. 07-13 657A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Huntington, West
Virginia
THE ISSUE
Entitlement to reimbursement of medical expenses incurred with
St. Mary's Medical Center from February 13, 2005 to February 15,
2005.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. M. Marcus, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from July
1961 to August 1969.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from an April 2005 determination by Department of Veterans
Affairs (VA) Medical Center (MC) in Huntington, West Virginia.
The Veteran had a hearing before the Board in August 2010 at the
Regional Office (RO) in Huntington, West Virginia and the
transcript is of record.
The Veteran provided additional evidence during his August 2010
hearing. A supplemental statement of the case (SSOC) was not
issued, but this is not necessary since the evidence submitted
was accompanied by a signed waiver of local jurisdictional
review.
The case was brought before the Board in September 2009, at which
time the claim was remanded to afford the Veteran a hearing
before the Board as requested. As indicated above, the Veteran
was afforded a hearing in August 2010 and the transcript is of
record. The case is once again before the Board for appellate
consideration of the issue on appeal.
FINDINGS OF FACT
1. The Veteran is 100 percent service-connected for
posttraumatic stress disorder (PTSD) and 0 percent service-
connected for rheumatoid arthritis.
2. The Veteran was treated at St. Mary Medical Center from
February 11, 2005 to February 15, 2005 for a non-service-
connected disorder.
3. The private hospital is located within 18 miles of the
Veteran's home whereas the nearest VA medical center is located
within 23 miles of the Veteran's home and, therefore, at the time
of the Veteran's hospitalization, VA facilities were feasibly
available to provide the care needed.
4. Medical opinions indicate that while it was reasonable for
the Veteran to seek immediate care at the private facility on
February 11, 2005, the condition had stabilized by February 13,
2005 and, therefore, a transfer to VA could have occurred at that
time.
CONCLUSION OF LAW
The criteria for entitlement to payment or reimbursement for
unauthorized medical services provided at St. Mary Medical Center
from February 13, 2005 to February 15, 2005, have not been met.
38 U.S.C.A. §§ 1725, 1728, 5107 (West 2002); 38 C.F.R. §§ 3.102,
17.120, 17.121, 17.1000, 17.1001, 17.1002 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran is 100 percent service-connected for PTSD and 0
percent service-connected for rheumatoid arthritis. The Veteran
also has a history of heart disease, but is not service connected
for any heart disorder.
The Veteran claims on February 11, 2005 he felt chest and
abdominal pain. While driving to the hospital, he felt as though
he was having a heart attack. Given his medical history of heart
disease, the Veteran decided to go to the emergency room at St.
Mary Medical Center, which was located a few miles closer than
the nearest VA medical facility. The Veteran was ultimately
diagnosed with acute cholecystitis with a non-obstructing mild
gallbladder stone. At the time of the Veteran's discharge on
February 15, 2005, the physicians had recommended to the Veteran
that he undergo a cholecystectomy. The Veteran had the surgery
performed at the VA medical center shortly thereafter.
In general, to establish eligibility for payment or reimbursement
of medical expenses incurred at a non-VA facility, a claimant
must satisfy three conditions. There must be a showing that:
(a) The care and services rendered were either:
(1) for an adjudicated service-connected disability,
or
(2) for a non-service-connected disability associated
with and held to be aggravating an adjudicated
service-connected disability, or
(3) for any disability of a veteran who has a total
disability, permanent in nature, resulting from a
service-connected disability, or
(4) for any injury, illness, or dental condition in
the case of a veteran who is participating in a
rehabilitation program and who is medically determined
to be in need of hospital care or medical services for
reasons set forth in 38 C.F.R. § 17.48(j); and
(b) The services were rendered in a medical emergency of
such nature that delay would have been hazardous to life or
health; and
(c) No VA or other Federal facilities were feasibly
available and an attempt to use them beforehand or obtain
prior VA authorization for the services required would not
have been reasonable, sound, wise, or practicable, or
treatment had been or would have been refused.
See 38 U.S.C.A. § 1728; 38 C.F.R. § 17.120; see also Zimick v.
West, 11 Vet. App. 45, 49 (1998).
Failure to satisfy any of the three criteria listed above
precludes VA from paying unauthorized medical expenses incurred
at a private facility. Zimick, 11 Vet. App. at 49; see also
Malone v. Gober, 10 Vet. App. 539, 542 (1997), citing Cotton v.
Brown, 7 Vet. App. 325, 327 (1995); H.R. Rep. No. 93-368, at 9
(July 10, 1973) ("[The proposed provision] authorizes
reimbursement of certain veterans who have service-connected
disabilities, under limited circumstances, for reasonable value
of hospital care or medical services . . . from sources other
than the VA. Eligible veterans are those receiving treatment for
a service-connected disability. . . . Services must be rendered
in a medical emergency and VA or other Federal facilities must
not be feasibly available.").
The Board notes that the Veterans Millennium Health Care and
Benefits Act, which became effective in May 2000, also provides
general authority for reimbursement for the reasonable value of
emergency treatment furnished in a non- Department facility to
those veterans who are active Department health-care participants
(enrolled in the annual patient enrollment system and recipients
of Department hospital, nursing home, or domiciliary care under
such system within the last 24-month period) and who are
personally liable for such treatment and not eligible for
reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38
U.S.C.A. § 1725. In this case, § 1728 is applicable in light of
the fact that the Veteran is 100 percent service-connected for
PTSD, a disability permanent in nature. See 38 U.S.C.A. §
1728(a).
The pertinent inquiry, then, is whether the other two elements
are satisfied for the medical services rendered from February 13,
2005 to February 15, 2005. The Board concludes they are not.
The Board finds noteworthy that the Veteran lives 23 miles away
from the nearest VA medical facility whereas he lives 18 miles, a
mere 5 miles closer, to St. Mary Medical Center. On February 11,
2005, the Veteran chose to enter the emergency room at St. Mary
Medical Center rather than driving an additional 5 miles because
he felt he was having a heart attack.
Despite the close proximity, the VAMC allowed reimbursement for
fees incurred at St. Mary Medical Center from February 11, 2005
and February 12, 2005. Reimbursement was denied, however, from
February 13, 2005 to February 15, 2005 finding the Veteran
stabilized on February 13, 2005 and could have reasonably
transferred to a VA facility at that time.
The Board finds, in general, the difference in proximity between
the private facility and the VA facility virtually insignificant.
In this case, however, the issue pertains to the medical services
received from February 13, 2005 to February 15, 2005. The
Veteran, at that time, was already hospitalized at the private
facility and the VAMC already awarded the Veteran reimbursement
for the initial hospitalization and treatment.
Accordingly, despite VA facilities being available, the crucial
inquiry here is whether the Veteran's medical emergency
stabilized rendering a VA transfer feasible under the
circumstances. In other words, were services rendered in a
"medical emergency of such nature that delay would have been
hazardous to life or health"? The Board concludes they were
not.
Under § 1728, a "medical emergency" must be of such a nature
that delay in obtaining treatment would have been hazardous to
life and health. See 38 U.S.C.A. § 1728(b); Zimick, 11 Vet. App.
at 49. The Court has held that "medical emergency" is a
medical question best answered by a physician. See Cotton v.
Brown, 7 Vet. App. 325, 327 (1995).
In April 2005, S.O., a VA Registered Nurse and Certified
Addictions Registered Nurse, reviewed the private medical
records. She noted that the Veteran was admitted for chest pain,
to rule out myocardial infarction. Cardiac disease was ruled out
on 2/12/05. Therefore, the decision was to approve the private
medical expenses from 2/11-2/12/05. She went on to note that the
Veteran's acute episode of cholecystitis subsided, and transfer
to VA could have occurred on 2/13/05 when he was stable.
Therefore, the decision was to deny the private medical expenses
from 2/13-2/15/05.
After the Veteran requested reconsideration of the April 2005
denial, E.W., a VA Registered Nurse with a Bachelor of Science in
Nursing, reviewed the record. She noted that the documentation
indicated that the Veteran was stable on 2/13/05 and tolerating a
regular diet. She noted that it was also documented that the
elective surgery could be done as an outpatient. She concluded,
therefore, that the Veteran could have been transferred to VA on
2/13/05.
The private medical records support both the medical opinions
discussed above. The Veteran was placed on telemetry when he
arrived at the hospital to rule-out acute myocardial infarction.
Handwritten notes indicate an ultrasound was conducted on
2/12/05. A typewritten history and physical note by Christine
Gilkerson, M.D., dated 2/12/05 indicated that the Veteran had
acute cholecystitis and once the acute episode subsided, he could
have the surgery at VA. He also had an asymptomatic non-
obstructive kidney stone, and a cardiac condition had been ruled
out with negative enzymes and no acute changes on telemetry. On
2/13/05, it was noted that he had no complaints and he was
tolerating a regular diet. The assessment was "stable."
Another note on that date indicated that he had probably passed a
stone, and he needed gallbladder surgery, but he could "go to VA
for this." Another note on 2/13/05 by the attending showed an
assessment of acute cholecystitis, and that the surgical
department recommended a cholecystectomy, but felt this could be
done as an outpatient. He was told to see VA for elective
surgery. The private discharge summary report indicated the
Veteran had an appointment with the VA on February 16, 2005 with
regard to the recommended surgery.
The Veteran submitted statements and testified that all
diagnostic tests conducted at St. Mary's from February 13 to
February 15, 2005 are tests VA would likely have outsourced to
them even if the Veteran had transferred to VA. He further
testified that VA relied on those private diagnostic tests in
admitting him for surgical removal of his gallbladder. He feels
the VA's reliance on the private tests and the immediate surgical
removal of his gallbladder by the VA proves his condition from
February 13, 2005 to February 15, 2005 had not stabilized and was
a true medical emergency.
While the Board is sympathetic to the Veteran's situation and
position, the Court has held that "medical emergency" is a
medical question best answered by a physician. See Cotton, 7
Vet. App. at 327. In this case, VA and private medical
professionals indicate on February 13, 2005 the Veteran's pain
had decreased and his overall condition had stabilized. The
Board finds the medical evidence in this case persuasive and
cutting against the Veteran's contention that he had not
stabilized until February 15, 2005. Accordingly, reimbursement
under 38 U.S.C.A. § 1728 simply is not warranted for medical
services rendered from February 13, 2005 to February 15, 2005.
Where a veteran is not entitled to reimbursement under 38
U.S.C.A. § 1728, as is the case here, consideration must also be
made as to whether the provisions of § 1725 does warrant
reimbursement. See 38 U.S.C.A. § 1725(i). The Board concludes it
does not.
Similar to § 1728, 38 U.S.C.A. § 1725 states that the failure of
any criteria listed in the statute precludes VA from paying
unauthorized medical expenses incurred at a private facility. See
38 U.S.C.A. § 1725(b); 38 C.F.R. § 17.1002(g). Section 1725
requires, in part, that, "the claim for payment or reimbursement
for the initial evaluation and treatment is for a condition of
such a nature that a prudent lay person would have reasonably
expected that delay in seeking immediate medical attention would
have been hazardous to life or health...." 38 U.S.C.A. § 1725(b)-
(c). For reasons already discussed, that element is lacking and
reimbursement under § 1725 is also not warranted.
While the Board is sympathetic toward the Veteran, it is bound by
the law, and its decision is dictated by the relevant statutes
and regulations. Moreover, the Board is without authority to
grant benefits simply because it might perceive the result to be
equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet.
App. 416, 425 (1994). Additionally, "no equities, no matter how
compelling, can create a right to payment out of the United
States Treasury which has not been provided for by Congress."
Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office
of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to reimbursement of medical expenses incurred with
St. Mary's Medical Center from February 13, 2005 to February 15,
2005.
____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs